BILL NUMBER: AB 794	CHAPTERED  09/21/99

	CHAPTER   444
	FILED WITH SECRETARY OF STATE   SEPTEMBER 21, 1999
	APPROVED BY GOVERNOR   SEPTEMBER 21, 1999
	PASSED THE ASSEMBLY   AUGUST 31, 1999
	PASSED THE SENATE   AUGUST 26, 1999
	AMENDED IN SENATE   AUGUST 16, 1999
	AMENDED IN SENATE   JUNE 2, 1999
	AMENDED IN ASSEMBLY   APRIL 27, 1999
	AMENDED IN ASSEMBLY   APRIL 15, 1999
	AMENDED IN ASSEMBLY   APRIL 5, 1999

INTRODUCED BY   Assembly Member Corbett

                        FEBRUARY 24, 1999

   An act to amend Sections 1985.3, 1985.6, and 2020 of the Code of
Civil Procedure, to amend Sections 1560, 1561, and 1563 of the
Evidence Code, and to amend Section 4055.2 of the Labor Code,
relating to confidentiality.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 794, Corbett.  Subpoenas:  personal records.
   (1) Existing law provides for a subpoena duces tecum for the
production of various kinds of defined personal records pertaining to
a consumer, maintained by a witness, as defined.  Existing law also
provides for the procedure to subpoena employment records.  These
provisions also require that the date specified on a subpoena duces
tecum for the production of personal records or employment records be
not less than 15 days from the date the subpoena is issued.
   This bill would revise and expand the definition of "personal
records" and "employment records" to include electronic data and
expand the definition of "witness" to include various health care
professionals and postsecondary schools, as specified.
   The bill would delete the requirement that the date specified on
the subpoena duces tecum for the production of personal records or
employment records be not less than 15 days from the date the
subpoena is issued.  The bill would also provide that when a subpoena
duces tecum commands the production of business records for copying,
specific information identifiable only to the deponent's records
system shall not be required.  The bill would make other changes with
respect to the production of business and employment records for
inspection or copying.
   (2) Existing law requires any party who subpoenas medical records
in a workers' compensation proceeding to send a copy of the subpoena
to all parties of record in the proceeding, as specified.
   This bill would make that provision applicable to any records.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1985.3 of the Code of Civil Procedure is
amended to read:
   1985.3.  (a) For purposes of this section, the following
definitions apply:
   (1) "Personal records" means the original, any copy of books,
documents, other writings, or electronic data pertaining to a
consumer and which are maintained by any "witness" which is a
physician, dentist, ophthalmologist, optometrist, chiropractor,
physical therapist, acupuncturist, podiatrist, veterinarian,
veterinary hospital, veterinary clinic, pharmacist, pharmacy,
hospital, medical center, clinic, radiology or MRI center, clinical
or diagnostic laboratory, state or national bank, state or federal
association (as defined in Section 5102 of the Financial Code), state
or federal credit union, trust company, anyone authorized by this
state to make or arrange loans that are secured by real property,
security brokerage firm, insurance company, title insurance company,
underwritten title company, escrow agent licensed pursuant to
Division 6 (commencing with Section 17000) of the Financial Code or
exempt from licensure pursuant to Section 17006 of the Financial
Code, attorney, accountant, institution of the Farm Credit System, as
specified in Section 2002 of Title 12 of the United States Code, or
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, or psychotherapist, as
defined in Section 1010 of the Evidence Code, or a private or public
preschool, elementary school, secondary school, or postsecondary
school as described in Section 76244 of the Education Code.
   (2) "Consumer" means any individual, partnership of five or fewer
persons, association, or trust which has transacted business with, or
has used the services of, the witness or for whom the witness has
acted as agent or fiduciary.
   (3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding pursuant to this code, but shall not
include the state or local agencies described in Section 7465 of the
Government Code, or any entity provided for under Article VI of the
California Constitution in any proceeding maintained before an
adjudicative body of that entity pursuant to Chapter 4 (commencing
with Section 6000) of Division 3 of the Business and Professions
Code.
   (4) "Deposition officer" means a person who meets the
qualifications specified in paragraph (3) of subdivision (d) of
Section 2020.
   (b) Prior to the date called for in the subpoena duces tecum for
the production of personal records, the subpoenaing party shall serve
or cause to be served on the consumer whose records are being sought
a copy of the subpoena duces tecum, of the affidavit supporting the
issuance of the subpoena, if any, and of the notice described in
subdivision (e), and proof of service as indicated in paragraph (1)
of subdivision (c).  This service shall be made as follows:
   (1) To the consumer personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record.  If the consumer is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor or with whom the minor resides or by whom the
minor is employed, and on the minor if the minor is at least 12
years of age.
   (2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
   (3) At least five days prior to service upon the custodian of the
records, plus the additional time provided by Section 1013 if service
is by mail.
   (c) Prior to the production of the records, the subpoenaing party
shall do either of the following:
   (1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
   (2) Furnish the witness a written authorization to release the
records signed by the consumer or by his or her attorney of record.
The witness may presume that any attorney purporting to sign the
authorization on behalf of the consumer acted with the consent of the
consumer, and that any objection to release of records is waived.
   (d) A subpoena duces tecum for the production of personal records
shall be served in sufficient time to allow the witness a reasonable
time, as provided in paragraph (1) of subdivision (d) of Section
2020, to locate and produce the records or copies thereof.
   (e) Every copy of the subpoena duces tecum and affidavit, if any,
served on a consumer or his or her attorney in accordance with
subdivision (b) shall be accompanied by a notice, in a typeface
designed to call attention to the notice, indicating that (1) records
about the consumer are being sought from the witness named on the
subpoena; (2) if the consumer objects to the witness furnishing the
records to the party seeking the records, the consumer must file
papers with the court or serve a written objection as provided in
subdivision (g) prior to the date specified for production on the
subpoena; and (3) if the party who is seeking the records will not
agree in writing to cancel or limit the subpoena, an attorney should
be consulted about the consumer's interest in protecting his or her
rights of privacy.  If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
   (f) A subpoena duces tecum for personal records maintained by a
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, shall not be valid or
effective unless it includes a consent to release, signed by the
consumer whose records are requested, as required by Section 2891 of
the Public Utilities Code.
   (g) Any consumer whose personal records are sought by a subpoena
duces tecum and who is a party to the civil action in which this
subpoena duces tecum is served may, prior to the date for production,
bring a motion under Section 1987.1 to quash or modify the subpoena
duces tecum.  Notice of the bringing of that motion shall be given to
the witness and deposition officer at least five days prior to
production.  The failure to provide notice to the deposition officer
shall not invalidate the motion to quash or modify the subpoena duces
tecum but may be raised by the deposition officer as an affirmative
defense in any action for liability for improper release of records.

   Any other consumer or nonparty whose personal records are sought
by a subpoena duces tecum may, prior to the date of production, serve
on the subpoenaing party the witness, and the deposition officer, a
written objection that cites the specific grounds on which production
of the personal records should be prohibited.
   No witness or deposition officer shall be required to produce
personal records after receipt of notice that the motion has been
brought by consumer, or after receipt of a written objection from a
nonparty consumer, except upon order of the court in which the action
is pending or by agreement of the parties, witnesses, and consumers
affected.
   The party requesting a consumer's personal records may bring a
motion under Section 1987.1 to enforce the subpoena within 20 days of
service of the written objection.  The motion shall be accompanied
by a declaration showing a reasonable and good faith attempt at
informal resolution of the dispute between the party requesting the
personal records and the consumer or the consumer's attorney.
   (h) Upon good cause shown and provided that the rights of
witnesses and consumers are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
where due diligence by the subpoenaing party has been shown.
   (i) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular consumer or consumers and which requires a custodian of
records to delete all information which would in any way identify any
consumer whose records are to be produced.
   (j) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code.
   (k) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the personal records sought by a
subpoena duces tecum.
  SEC. 2.  Section 1985.6 of the Code of Civil Procedure is amended
to read:
   1985.6.  (a) For purposes of this section, the following
definitions apply:
   (1) "Employment records" means the original or any copy of books,
documents, other writings, or electronic data pertaining to the
employment of any employee maintained by the current or former
employer of the employee.
   (2) "Employee" means any individual who is or has been employed by
a witness subject to a subpoena duces tecum.
   (3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding, but shall not include the state or local
agencies described in Section 7465 of the Government Code, or any
entity provided for under Article VI of the California Constitution
in any proceeding maintained before an adjudicative body of that
entity pursuant to Chapter 4 (commencing with Section 6000) of
Division 3 of the Business and Professions Code.
   (4) "Deposition officer" means a person who meets the
qualifications specified in paragraph (3) of subdivision (d) of
Section 2020.
   (b) Prior to the date called for in the subpoena duces tecum of
the production of employment records, the subpoenaing party shall
serve or cause to be served on the employee whose records are being
sought a copy of:  the subpoena duces tecum; the affidavit supporting
the issuance of the subpoena, if any; and the notice described in
subdivision (e), and proof of service as provided in paragraph (1) of
subdivision (c).  This service shall be made as follows:
   (1) To the employee personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record.  If the employee is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor, or with whom the minor resides, and on the
minor if the minor is at least 12 years of age.
   (2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
   (3) At least five days prior to service upon the custodian of the
employment records, plus the additional time provided by Section 1013
if service is by mail.
   (c) Prior to the production of the records, the subpoenaing party
shall either:
   (1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
   (2) Furnish the witness a written authorization to release the
records signed by the employee or by his or her attorney of record.
The witness may presume that the attorney purporting to sign the
authorization on behalf of the employee acted with the consent of the
employee, and that any objection to release of records is waived.
   (d) A subpoena duces tecum for the production of employment
records shall be served in sufficient time to allow the witness a
reasonable time, as provided in paragraph (1) of subdivision (d) of
Section 2020, to locate and produce the records or copies thereof.
   (e) Every copy of the subpoena duces tecum and affidavit served on
an employee or his or her attorney in accordance with subdivision
(b) shall be accompanied by a notice, in a typeface designed to call
attention to the notice, indicating that (1) employment records about
the employee are being sought from the witness named on the
subpoena; (2) the employment records may be protected by a right of
privacy; (3) if the employee objects to the witness furnishing the
records to the party seeking the records the employee shall file
papers with the court prior to the date specified for production on
the subpoena; and (4) if the subpoenaing party does not agree in
writing to cancel or limit the subpoena, an attorney should be
consulted about the employee's interest in protecting his or her
rights of privacy.  If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
   (f) Any employee whose employment records are sought by a subpoena
duces tecum may, prior to the date for production, bring a motion
under Section 1987.1 to quash or modify the subpoena duces tecum.
Notice of the bringing of that motion shall be given to the witness
and the deposition officer at least five days prior to production.
The failure to provide notice to the deposition officer shall not
invalidate the motion to quash or modify the subpoena duces tecum but
may be raised by the deposition officer as an affirmative defense in
any action for liability for improper release of records.
   Any nonparty employee whose employment records are sought by a
subpoena duces tecum may, prior to the date of production, serve on
the subpoenaing party, and the deposition officer, the witness a
written objection that cites the specific grounds on which production
of the employment records should be prohibited.
   No witness or deposition officer shall be required to produce
employment records after receipt of notice that the motion has been
brought by an employee, or after receipt of a written objection from
a nonparty employee, except upon order of the court in which the
action is pending or by agreement of the parties, witnesses, and
employees affected.
   The party requesting an employee's employment records may bring a
motion under subdivision (c) of Section 1987 to enforce the subpoena
within 20 days of service of the written objection.  The motion shall
be accompanied by a declaration showing a reasonable and good faith
attempt at informal resolution of the dispute between the party
requesting the employment records and the employee or the employee's
attorney.
   (g) Upon good cause shown and provided that the rights of witness
and employees are preserved, a subpoenaing party shall be entitled to
obtain an order shortening the time for service of a subpoena duces
tecum or waiving the requirements of subdivision (b) where due
diligence by the subpoenaing party has been shown.
   (h) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular employee or employees and which requires a custodian of
records to delete all information which would in any way identify any
employee whose records are to be produced.
   (i) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code.
   (j) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the employment records sought by
subpoena duces tecum.
  SEC. 3.  Section 2020 of the Code of Civil Procedure is amended to
read:
   2020.  (a) The method for obtaining discovery within the state
from one who is not a party to the action is an oral deposition under
Section 2025, a written deposition under Section 2028, or a
deposition for production of business records and things under
subdivisions (d) and (e).  Except as provided in paragraph (1) of
subdivision (h) of Section 2025, the process by which a nonparty is
required to provide discovery is a deposition subpoena.  The
deposition subpoena may command any of the following:
   (1) Only the attendance and the testimony of the deponent, under
subdivision (c).
   (2) Only the production of business records for copying, under
subdivision (d).
   (3) Both the attendance and the testimony of the deponent, as well
as the production of business records, other documents, and tangible
things, under subdivision (e).
   Except as modified in this section, the provisions of Chapter 2
(commencing with Section 1985), and of Article 4 (commencing with
Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply
to a deposition subpoena.
   (b) The clerk of the court in which the action is pending shall
issue a deposition subpoena signed and sealed, but otherwise in
blank, to a party requesting it, who shall fill it in before service.
  In lieu of the court-issued deposition subpoena, an attorney of
record for any party may sign and issue a deposition subpoena; the
deposition subpoena in that case need not be sealed, a copy may be
served on the nonparty, and the attorney may retain the original.
   (c) A deposition subpoena that commands only the attendance and
the testimony of the deponent shall specify the time when and the
place where the deponent is commanded to attend for the deposition.
It shall set forth a summary of (1) the nature of a deposition, (2)
the rights and duties of the deponent, and (3) the penalties for
disobedience of a deposition subpoena described in subdivision (h).
If the deposition will be recorded by videotape under paragraph (2)
of subdivision (l) of Section 2025, the deposition subpoena shall
state that it will be recorded in that manner.  If the deponent is an
organization, the deposition subpoena shall describe with reasonable
particularity the matters on which examination is requested, and
shall advise that organization of its duty to make the designation of
employees or agents who will attend described in subdivision (d) of
Section 2025.
   (d) (1) A deposition subpoena that commands only the production of
business records for copying shall designate the business records to
be produced either by specifically describing each individual item
or by reasonably particularizing each category of item; however,
specific information identifiable only to the deponent's records
system, such as a policy number or the date the consumer interacted
with the witness, shall not be required.  This deposition subpoena
need not be accompanied by an affidavit or declaration showing good
cause for the production of the business records designated in it.
It shall be directed to the custodian of those records or another
person qualified to certify the records.  It shall command compliance
in accordance with paragraph (4) on a date that is no earlier than
20 days after the issuance, or 15 days after the service, of the
deposition subpoena, whichever date is later.
   (2) If, under Section 1985.3 or 1985.6, the one to whom the
deposition subpoena is directed is a witness, and the business
records described in the deposition subpoena are personal records
pertaining to a consumer, the service of the deposition subpoena
shall be accompanied either by a copy of the proof of service of the
notice to the consumer described in subdivision (e) of Section
1985.3, or subdivision (b) of Section 1985.6, as applicable, or by
the consumer's written authorization to release personal records
described in paragraph (2) of subdivision (c) of Section 1985.3, or
paragraph (2) of subdivision (c) of Section 1985.6, as applicable.
   (3) The officer for a deposition seeking discovery only of
business records for copying under this subdivision shall be a
professional photocopier registered under Chapter 20 (commencing with
Section 22450) of Division 8 of the Business and Professions Code,
or a person exempted from the registration requirements of that
chapter under Section 22451 of the Business and Professions Code.
This deposition officer shall not be financially interested in the
action, or a relative or employee of any attorney of the parties.
Any objection to the qualifications of the deposition officer is
waived unless made before the date of production or as soon
thereafter as the ground for that objection becomes known or could be
discovered by reasonable diligence.
   (4) Unless directed to make the records available for inspection
or copying by the subpoenaing party's attorney or a representative of
that attorney at the witness' business address under subdivision (e)
of Section 1560 of the Evidence Code, the custodian of the records
or other qualified person shall, in person, by messenger, or by mail,
deliver only to the deposition officer specified in the deposition
subpoena (1) a true, legible, and durable copy of the records, and
(2) an affidavit in compliance with Section 1561 of the Evidence
Code.  If this delivery is made to the office of the deposition
officer, the records shall be enclosed, sealed, and directed as
described in subdivision (c) of Section 1560 of the Evidence Code.
If this delivery is made at the office of the business whose records
are the subject of the deposition subpoena, the custodian of those
records or other qualified person shall (1) permit the deposition
officer specified in the deposition subpoena to make a copy of the
originals of the designated business records during normal business
hours as defined in subdivision (e) of Section 1560 of the Evidence
Code, or (2) deliver to that deposition officer a true, legible, and
durable copy of the records on receipt of payment in cash or by
check, by or on behalf of the party serving the deposition subpoena,
of the reasonable costs of preparing that copy, and an itemized
statement for the cost of preparation, as determined under
subdivision (b) of Section 1563 of the Evidence Code.  This copy need
not be delivered in a sealed envelope.  Unless the parties, and if
the records are those of a consumer as defined in Section 1985.3 or
1985.6, the consumer, stipulate to an earlier date, the custodian of
the records shall not deliver to the deposition officer the records
that are the subject of the deposition subpoena prior to the date and
time specified in the deposition subpoena.  The following legend
shall appear in boldface type on the deposition subpoena immediately
following the date and time specified for production:  "Do not
release the requested records to the deposition officer prior to the
date and time stated above."
   (5) Promptly on or after the deposition date and after the receipt
or the making of a copy of business records under this subdivision,
the deposition officer shall provide that copy to the party at whose
instance the deposition subpoena was served, and a copy of those
records to any other party to the action who then or subsequently,
within a period of six months following the settlement of the case,
notifies the deposition officer that the party desires to purchase a
copy of those records.
   (6) The provisions of Section 1562 of the Evidence Code concerning
the admissibility of the affidavit of the custodian or other
qualified person apply to a deposition subpoena served under this
subdivision.
   (e) A deposition subpoena that commands both the attendance and
the testimony of the deponent, as well as the production of business
records, documents, and tangible things, shall (1) comply with the
requirements of subdivision (c), (2) designate the business records,
documents, and tangible things to be produced either by specifically
describing each individual item or by reasonably particularizing each
category of item, and (3) specify any testing or sampling that is
being sought.  This deposition subpoena need not be accompanied by an
affidavit or declaration showing good cause for the production of
the documents and things designated.
   Where, as described in Section 1985.3, the person to whom the
deposition subpoena is directed is a witness, and the business
records described in the deposition subpoena are personal records
pertaining to a consumer, the service of the deposition subpoena
shall be accompanied either by a copy of the proof of service of the
notice to the consumer described in subdivision (e) of Section
1985.3, or by the consumer's written authorization to release
personal records described in paragraph (2) of subdivision (c) of
Section 1985.3.
   (f) Subject to paragraph (1) of subdivision (d), service of a
deposition subpoena shall be effected a sufficient time in advance of
the deposition to provide the deponent a reasonable opportunity to
locate and produce any designated business records, documents, and
tangible things, as described in subdivision (d), and, where personal
attendance is commanded, a reasonable time to travel to the place of
deposition.  Any person may serve the subpoena by personal delivery
of a copy of it (1) if the deponent is a natural person, to that
person, and (2) if the deponent is an organization, to any officer,
director, custodian of records, or to any agent or employee
authorized by the organization to accept service of a subpoena.
   If a deposition subpoena requires the personal attendance of the
deponent, under subdivision (c) or (e), the party noticing the
deposition shall pay to the deponent in cash or by check the same
witness fee and mileage required by Chapter 1 (commencing with
Section 68070) of Title 8 of the Government Code for attendance and
testimony before the court in which the action is pending.  This
payment, whether or not demanded by the deponent, shall be made, at
the option of the party noticing the deposition, either at the time
of service of the deposition subpoena, or at the time the deponent
attends for the taking of testimony.
   Service of a deposition subpoena that does not require the
personal attendance of a custodian of records or other qualified
person, under subdivision (d), shall be accompanied, whether or not
demanded by the deponent, by a payment in cash or by check of the
witness fee required by paragraph (6) of subdivision (b) of Section
1563 of the Evidence Code.
   (g) Personal service of any deposition subpoena is effective to
require of any deponent who is a resident of California at the time
of service (1) personal attendance and testimony, if the subpoena so
specifies, (2) any specified production, inspection,
                               testing, and sampling, and (3) the
deponent's attendance at a court session to consider any issue
arising out of the deponent's refusal to be sworn, or to answer any
question, or to produce specified items, or to permit inspection or
photocopying, if the subpoena so specifies, or specified testing and
sampling of the items produced.
   (h) A deponent who disobeys a deposition subpoena in any manner
described in subdivision (g) may be punished for contempt under
Section 2023 without the necessity of a prior order of court
directing compliance by the witness, and is subject to the forfeiture
and the payment of damages set forth in Section 1992.
  SEC. 4.  Section 1560 of the Evidence Code is amended to read:
   1560.  (a) As used in this article:
   (1) "Business" includes every kind of business described in
Section 1270.
   (2) "Record" includes every kind of record maintained by a
business.
   (b) Except as provided in Section 1564, when a subpoena duces
tecum is served upon the custodian of records or other qualified
witness of a business in an action in which the business is neither a
party nor the place where any cause of action is alleged to have
arisen, and the subpoena requires the production of all or any part
of the records of the business, it is sufficient compliance therewith
if the custodian or other qualified witness, within five days after
the receipt of the subpoena in any criminal action or within the time
agreed upon by the party who served the subpoena and the custodian
or other qualified witness, or within 15 days after the receipt of
the subpoena in any civil action or within the time agreed upon by
the party who served the subpoena and the custodian or other
qualified witness, delivers by mail or otherwise a true, legible, and
durable copy of all the records described in the subpoena to the
clerk of the court or to the judge if there be no clerk or to another
person described in subdivision (c) of Section 2026 of the Code of
Civil Procedure, together with the affidavit described in Section
1561.
   (c) The copy of the records shall be separately enclosed in an
inner envelope or wrapper, sealed, with the title and number of the
action, name of witness, and date of subpoena clearly inscribed
thereon; the sealed envelope or wrapper shall then be enclosed in an
outer envelope or wrapper, sealed, and directed as follows:
   (1) If the subpoena directs attendance in court, to the clerk of
the court, or to the judge thereof if there be no clerk.
   (2) If the subpoena directs attendance at a deposition, to the
officer before whom the deposition is to be taken, at the place
designated in the subpoena for the taking of the deposition or at the
officer's place of business.
   (3) In other cases, to the officer, body, or tribunal conducting
the hearing, at a like address.
   (d) Unless the parties to the proceeding otherwise agree, or
unless the sealed envelope or wrapper is returned to a witness who is
to appear personally, the copy of the records shall remain sealed
and shall be opened only at the time of trial, deposition, or other
hearing, upon the direction of the judge, officer, body, or tribunal
conducting the proceeding, in the presence of all parties who have
appeared in person or by counsel at the trial, deposition, or
hearing.  Records which are original documents and which are not
introduced in evidence or required as part of the record shall be
returned to the person or entity from whom received.  Records which
are copies may be destroyed.
   (e) As an alternative to the procedures described in subdivisions
(b), (c), and (d), the subpoenaing party may direct the witness to
make the records available for inspection or copying by the party's
attorney, the attorney's representative, or deposition officer as
described in paragraph (3) of subdivision (d) of Section 2020 of the
Code of Civil Procedure, at the witness' business address under
reasonable conditions during normal business hours.  Normal business
hours, as used in this subdivision, means those hours that the
business of the witness is normally open for business to the public.
When provided with at least five business days' advance notice by
the party's attorney, attorney's representative, or deposition
officer, the witness shall designate a time period of not less than
six continuous hours on a date certain for copying of records subject
to the subpoena by the party's attorney, attorney's representative
or deposition officer.  It shall be the responsibility of the
attorney's representative to deliver any copy of the records as
directed in the subpoena.  Disobedience to the deposition subpoena
issued pursuant to this subdivision is punishable as provided in
subdivision (h) of Section 2020.
  SEC. 5.  Section 1561 of the Evidence Code is amended to read:
   1561.  (a) The records shall be accompanied by the affidavit of
the custodian or other qualified witness, stating in substance each
of the following:
   (1) The affiant is the duly authorized custodian of the records or
other qualified witness and has authority to certify the records.
   (2) The copy is a true copy of all the records described in the
subpoena duces tecum, or pursuant to subdivision (e) of Section 1560
the records were delivered to the attorney, the attorney's
representative, or deposition officer for copying at the custodian's
or witness' place of business, as the case may be.
   (3) The records were prepared by the personnel of the business in
the ordinary course of business at or near the time of the act,
condition, or event.
   (4) The identity of the records.
   (5) A description of the mode of preparation of the records.
   (b) If the business has none of the records described, or only
part thereof, the custodian or other qualified witness shall so state
in the affidavit, and deliver the affidavit and those records that
are available in one of the manners provided in Section 1560.
   (c) Where the records described in the subpoena were delivered to
the attorney or his or her representative or deposition officer for
copying at the custodian's or witness' place of business, in addition
to the affidavit required by subdivision (a), the records shall be
accompanied by an affidavit by the attorney or his or her
representative or deposition officer stating that the copy is a true
copy of all the records delivered to the attorney or his or her
representative or deposition officer for copying.
  SEC. 6.  Section 1563 of the Evidence Code is amended to read:
   1563.  (a) This article shall not be interpreted to require tender
or payment of more than one witness fee and one mileage fee or other
charge, to a witness or witness' business, unless there is an
agreement to the contrary between the witness and the requesting
party.
   (b) All reasonable costs incurred in a civil proceeding by any
witness which is not a party with respect to the production of all or
any part of business records the production of which is requested
pursuant to a subpoena duces tecum may be charged against the party
serving the subpoena duces tecum.
   (1) "Reasonable cost," as used in this section, shall include, but
not be limited to, the following specific costs: ten cents ($0.10)
per page for standard reproduction of documents of a size 81/2 by 14
inches or less; twenty cents ($0.20) per page for copying of
documents from microfilm; actual costs for the reproduction of
oversize documents or the reproduction of documents requiring special
processing which are made in response to a subpoena; reasonable
clerical costs incurred in locating and making the records available
to be billed at the maximum rate of twenty-four dollars ($24) per
hour per person, computed on the basis of six dollars ($6) per
quarter hour or fraction thereof; actual postage charges; and the
actual cost, if any, charged to the witness by a third person for the
retrieval and return of records held offsite by that third person.
   (2) The requesting party, or the requesting party's deposition
officer, shall not be required to pay those costs or any estimate
thereof prior to the time the records are available for delivery
pursuant to the subpoena, but the witness may demand payment of costs
pursuant to this section simultaneous with actual delivery of the
subpoenaed records, and until payment is made, is under no obligation
to deliver the records.
   (3) The witness shall submit an itemized statement for the costs
to the requesting party, or the requesting party's deposition
officer, setting forth the reproduction and clerical costs incurred
by the witness.  Should the costs exceed those authorized in
paragraph (1), or the witness refuses to produce an itemized
statement of costs as required by paragraph (3), upon demand by the
requesting party, or the requesting party's deposition officer, the
witness shall furnish a statement setting forth the actions taken by
the witness in justification of the costs.
   (4) The requesting party may petition the court in which the
action is pending to recover from the witness all or a part of the
costs paid to the witness, or to reduce all or a part of the costs
charged by the witness, pursuant to this subdivision, on the grounds
that those costs were excessive.  Upon the filing of the petition the
court shall issue an order to show cause and from the time the order
is served on the witness the court has jurisdiction over the
witness.  The court may hear testimony on the order to show cause and
if it finds that the costs demanded and collected, or charged but
not collected, exceed the amount authorized by this subdivision, it
shall order the witness to remit to the requesting party, or reduce
its charge to the requesting party by an amount equal to, the amount
of the excess.  In the event that the court finds the costs excessive
and charged in bad faith by the witness, the court shall order the
witness to remit the full amount of the costs demanded and collected,
or excuse the requesting party from any payment of costs charged but
not collected, and the court shall also order the witness to pay the
requesting party the amount of the reasonable expenses incurred in
obtaining the order including attorney's fees.  If the court finds
the costs were not excessive, the court shall order the requesting
party to pay the witness the amount of the reasonable expenses
incurred in defending the petition, including attorney's fees.
   (5) If a subpoena is served to compel the production of business
records and is subsequently withdrawn, or is quashed, modified or
limited on a motion made other than by the witness, the witness shall
be entitled to reimbursement pursuant to paragraph (1) for all costs
incurred in compliance with the subpoena to the time that the
requesting party has notified the witness that the subpoena has been
withdrawn or quashed, modified or limited.  In the event the subpoena
is withdrawn or quashed, if those costs are not paid within 30 days
after demand therefor, the witness may file a motion in the court in
which the action is pending for an order requiring payment, and the
court shall award the payment of expenses and attorney's fees in the
manner set forth in paragraph (4).
   (6) Where the records are delivered to the attorney, the attorney'
s representative, or the deposition officer for inspection or
photocopying at the witness' place of business, the only fee for
complying with the subpoena shall not exceed fifteen dollars ($15),
plus the actual cost, if any, charged to the witness by a third
person for retrieval and return of records held offsite by that third
person.  If the records are retrieved from microfilm, the reasonable
cost, as defined in paragraph (1), shall also apply.
   (c) When the personal attendance of the custodian of a record or
other qualified witness is required pursuant to Section 1564, in a
civil proceeding, he or she shall be entitled to the same witness
fees and mileage permitted in a case where the subpoena requires the
witness to attend and testify before a court in which the action or
proceeding is pending and to any additional costs incurred as
provided by subdivision (b).
  SEC. 7.  Section 4055.2 of the Labor Code is amended to read:
   4055.2.  Any party who subpoenas records in any proceeding under
this division shall concurrent with service of the subpoena upon the
person who has possession of the records, send a copy of the subpoena
to all parties of record in the proceeding.
